In re J.S.

Citation: 2012 Ohio 421Docket: 24597

Court: Ohio Court of Appeals; February 2, 2012; Ohio; State Appellate Court

Original Court Document: View Document

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Angela Smith appeals the juvenile court's March 22, 2011 decision that upheld a magistrate's ruling denying her request to retroactively modify child support to March 10, 2003. Smith's motion was based on her claim that Antonia White, the father of her son J.S., did not inform the Child Support Enforcement Agency (SEA) about his employment status change on March 10, 2003. The procedural history includes White's October 22, 2002 motion to reduce child support, followed by Smith's January 9, 2003 motion for contempt due to White's failure to report his employment changes. On January 10, 2003, the SEA noted an outstanding child support arrearage of $11,003.47.

A February 3, 2003 hearing led to the court's order on March 21, 2003, which found White unemployed and modified his support obligations effective from October 22, 2002. This order mandated that White notify the SEA of any employment changes, and failure to do so could result in retroactive support liability. Following the juvenile court's adoption of the magistrate's decision, no appeals were pursued. 

Further, during a hearing on April 15, 2003, the magistrate found White in contempt for not reporting temporary jobs since September 2002, ultimately sentencing him to a suspended five-day jail term contingent on compliance with support payments and timely reporting of employment changes to the SEA. An Administrative Recommendation filed on January 12, 2005, indicated Smith sought a review of White's child support obligation in September 2004. After a series of missed hearings, the SEA imputed White's income at $31,200.00 annually, adjusting his child support obligation to $360.91 per month plus arrearage payments.

A non-employer notice to withhold was issued to Huntington National Bank for White, requiring him to notify the State Enforcement Agency (SEA) of employment changes. A magistrate's decision from February 15, 2005, established that such orders are enforceable by the court. On November 12, 2009, Smith requested a hearing for mistake of fact and child support adjustment, alleging White provided false information affecting child support orders and failing to comply with discovery requests. Smith sought to impute income of $78,000 to White based on his earnings from 2003 to 2006 and claimed he had defrauded the court regarding child support.

On March 17, 2010, Smith submitted Requests for Admission, including W-2 forms showing White's earnings from 2003 to 2008, and a 2009 Form 1040 indicating $57,028 earned through June 2009. Smith later filed a memorandum asserting White's employment from March 10, 2003, with a base salary of $75,000 plus a bonus. On May 17, 2010, both parties filed a Joint Proffer of Evidence, agreeing on the admissibility of Smith’s Requests for Admission and the child support computation, which was mutually accepted. They agreed to a 20% monthly arrearage repayment and to notify each other and the SEA of employment changes, while Smith withdrew her contempt motion and request for attorney fees.

On May 19, 2010, Smith filed a Supplemental Memorandum, with White responding that Ohio law prohibits retroactive support modifications and that he had fulfilled his notification obligations. A magistrate's decision on July 23, 2010, and an amended order on October 12, 2010, confirmed White's employment and noted his failure to formally notify the SEA or Smith of employment changes. Additionally, the magistrate highlighted the absence of hearing transcripts, preventing the determination of testimony from those hearings.

The magistrate could not ascertain when Smith learned of White's employment starting on March 10, 2003. No contempt motion was filed regarding White's failure to report his change of employment. At the February 3, 2003 hearing, White was unemployed and receiving benefits. The magistrate concluded that R.C. 3119.83 prohibits retroactive child support modifications and has no exceptions for fraud or failure to notify about income changes. Modifications can only occur if the parties agree, citing Byrd v. Knuckles. The requested modification would have retroactively altered child support from 6 years and 9 months prior to the motion. The absence of computation sheets for those years was deemed non-determinative under R.C. 3119.83. The court upheld the magistrate's ruling, stating child support is effective from the date the modification motion was filed. Smith objected, arguing R.C. 3119.83 pertains to unpaid support and violates constitutional rights. White also objected, stating the amended support should date back to October 1, 2009. The juvenile court confirmed White's employment and his failure to notify the SEA. It reiterated that R.C. 3119.83 prohibits retroactive modifications prior to the motion date, leading to the overruling of Smith's objections.

The Court overruled the Father's objection regarding the effective date of the child support order, stating that under R.C. 3119.71(B), modifications to child support amounts relate back to the first day of the month following the initiation of the review process. The Mother’s request for a hearing on November 12, 2009, triggered this provision. Subsequently, the Court adopted the magistrate’s decision. 

On July 27, 2011, White filed a motion to dismiss Smith's appeal, claiming Smith did not submit the lower court's record. Smith's counsel countered that he had not been served with the motion and that the record was complete. The Court overruled White’s motion to dismiss.

Smith raised seven assignments of error, with the first alleging that the Court misinterpreted O.R.C. 3119.83 regarding delinquent support payments. This statute generally prohibits retroactive modification of delinquent support payments, while R.C. 3119.84 allows modification of future payments once notice is given to all relevant parties.

Typically, a trial court can retroactively modify child support to the filing date of the modification motion. However, retroactive adjustments for non-delinquent obligations may occur under special circumstances, such as proven fraud, as highlighted in Torbeck v. Torbeck. In Leffel v. Leffel, the Court affirmed a retroactive increase in child support due to the obligor's fraudulent actions that concealed an increase in income. The Court clarified that R.C. 3113.21(M)(3, 4) applies only to delinquent payments and does not prevent adjustments in cases involving fraudulent behavior that misleads the court and the obligee about the obligor’s financial situation.

A rule against retroactive corrections of child support payments would unjustly harm the child by denying them due support and rewarding the obligor for dishonesty, conflicting with the courts' primary duty to protect the child's best interests. The case law cited, including Balazs v. Balazs and Hakhamaneshi v. Shabani, supports the retroactive modification of child support when the obligor fails to notify the court of changes, as seen with White, who did not report his re-employment or provide current income information required for an administrative review. As a result, the court determined that a recalculation of White's child support obligation is necessary and remanded the case for further proceedings. Smith's remaining assignments of error regarding the constitutionality of R.C. 3119.83 were not addressed because the initial ruling was sufficient to reverse and remand the case. The court clarified that R.C. 3119.83 does not apply to this situation, as it pertains to delinquent support payments and the absence of an arrearage due to White's non-reporting.

R.C. 3119.84, effective March 22, 2001, governs Smith's request for retroactive child support modifications. This statute allows for retroactive increases to child support obligations only to the date when notice of the modification motion was served on the obligor. The principle of 'expressio unius est exclusio alterius' indicates that retroactive modifications cannot extend to the earlier date of White's income increase, as requested by Smith. R.C. 3119.84 ensures due process by requiring prior notice for modifications, although this right can be waived. It may be argued that White waived his right to prior notice by not reporting his income increase as mandated by the court. If White is granted the opportunity to contest the retroactive increase, the court can exercise its equitable powers under R.C. 3105.011 to potentially allow the retroactive modification.